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Climate Change Class Actions

Last fall, we wrote about the potential for climate change disclosure class actions in Canada—class actions arising from an issuer’s failure to disclosure material information related to climate change. Since then, climate change class actions having little to do with disclosure have arrived in Canada. These cases—current and contemplated—generally follow American precedents.

First, in November 2018, ENvironnement JEUnesse (“ENJEU"), a non-profit organization, filed a proposed class action against the federal government in Quebec. The claim is brought on behalf of all Quebec residents aged 35 and under and alleges that the federal government set inadequate targets for reducing greenhouse gas emissions and failed to meet the targets it did set. ENJEU argues that the federal government thereby breached ss. 7 and 15 of the Canadian Charter of Rights and Freedoms, ss.1, 10, and 46.1 of Quebec’s Charter of Human Rights and Freedoms, and various obligations under the Canadian Environmental Protection Act. ENJEU seeks various declarations and corrective action.

ENJEU’s claim follows similar lawsuits in the United States. For example, in Juliana v. United States, several youth plaintiffs and a non-profit organization allege that the US federal government caused or contributed to global warming by enabling the exploitation of fossil fuels and thereby breached the plaintiffs’ constitutional rights. Juliana was filed in 2015; a trial has been delayed by interlocutory appeals.

Second, in January 2019, the City of Victoria (BC) endorsed a class action on behalf of local governments in BC to recover the costs they incur as a result of climate change from “major fossil fuels corporations”. Victoria plans to raise the proposed class action—which has yet to be filed or outlined in detail—with other BC municipalities later this year. Victoria also plans to ask the provincial government to “consider legislation to support local governments” in recovering the costs of climate change. The legal framework of this proposed claim remains unknown.

Victoria’s proposal also follows similar lawsuits south of the border. Several US cities have sued large American energy companies for the costs resulting from climate change, but the cities have generally proceeded individually—and without success. For example, New York’s claim was summarily dismissed in mid-2018 (New York has appealed).

Regardless of the ultimate outcome of ENJEU’s claim and Victoria’s proposal, climate change lawsuits may be a fixture in Canadian class actions for years. The US Supreme Court decided its first climate change case (brought by several states, cities, and non-profit organizations against the federal government and others) in 2007. Climate change lawsuits have continued since. In Canada, climate change lawsuits will likely take the form of class actions.

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